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Criminalizing Rights to Peaceably Assemble? Militia Now Viewed as "Gangs"

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posted on Apr, 29 2010 @ 12:37 PM
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Originally posted by Ryanp5555


"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

This means that Congress can create any law that is necessary and proper regarding the calling forth of Militias, including, that there shall be no militias.



Not to step on anyone else's debate, but I just couldn't let this gem pass without comment.

"Calling forth" militias means activating them and putting them to service for cause, and has nothing at all to do with outlawing them. It provides for after-action disbanding, in which event the militias go back home, to their regular schedule of training and equipping.

So no, it's not any sort of provision 'that there shall be no militias'.




posted on Apr, 29 2010 @ 01:01 PM
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Originally posted by Ryanp5555

What are you arguing here? That the necessary and proper clause doesn't exist? What do you suppose that it means when it says:


The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


Immediately after the enumerated powers of Congress? How do you justify this clause with your current expectations?



This clearly states that Congress can make laws to execute the powers enumerated above it. It doesn't say anything at all about negating them. That activity requires amendment.



posted on Apr, 29 2010 @ 01:04 PM
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reply to post by Ryanp5555
 


Sorry about the dolt thing, I was attempting to use the suffering wayfarer thing.

Yes, the WHOLE problem now is the government's rationalization of the interpretation of the Constitution.

What you state, about the interpretation meaning what is better for the whole of the country-by being able to infringe on the very rights of the people, is the whole kit and kaboodle.

As one can see by both documents of the creation of the US of A, that they were created for the SOLE purpose of keeping tyranny at bay. Yes, I know the government interprets the elastic clause of passing legislation to mean ANYTHING is possible.

They could actually rationalize poisoning the citizens and committing eugenics if it was for the GOOD of the country.

That is their rationalization behind such things as the internment of Japanese/Americans during WW2.

That is their rationalization behind committing assassinations of foreign dignitaries and subverting entire country's sovereignty.

Just because I understand their motivation, does not make what they are doing RIGHT.

Hell, I understand that Hitler was a sociopath and psychopath. Now I understand his motivation, does that MEAN that it is correct or right?

You are arguing the government's position, does that mean you are right?

Original INTENT is what is the basis for so many peoples ire, including mine.

The rationalize their actions to be for the good of the collective.

The problem with that is that the Constitution never ONCE gave a # about the collective rights of the people. They knew that is where tyranny comes from.

So, my whole argument is ORIGINAL INTENT.



posted on Apr, 29 2010 @ 01:58 PM
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Originally posted by endisnighe
reply to post by Ryanp5555
 


Sorry about the dolt thing, I was attempting to use the suffering wayfarer thing.

Yes, the WHOLE problem now is the government's rationalization of the interpretation of the Constitution.

What you state, about the interpretation meaning what is better for the whole of the country-by being able to infringe on the very rights of the people, is the whole kit and kaboodle.

As one can see by both documents of the creation of the US of A, that they were created for the SOLE purpose of keeping tyranny at bay. Yes, I know the government interprets the elastic clause of passing legislation to mean ANYTHING is possible.

They could actually rationalize poisoning the citizens and committing eugenics if it was for the GOOD of the country.

That is their rationalization behind such things as the internment of Japanese/Americans during WW2.

That is their rationalization behind committing assassinations of foreign dignitaries and subverting entire country's sovereignty.

Just because I understand their motivation, does not make what they are doing RIGHT.

Hell, I understand that Hitler was a sociopath and psychopath. Now I understand his motivation, does that MEAN that it is correct or right?

You are arguing the government's position, does that mean you are right?

Original INTENT is what is the basis for so many peoples ire, including mine.

The rationalize their actions to be for the good of the collective.

The problem with that is that the Constitution never ONCE gave a # about the collective rights of the people. They knew that is where tyranny comes from.

So, my whole argument is ORIGINAL INTENT.


Okay, I'm not arguing whether or not original intent is, or should be the correct doctrine. Like I said earlier, I do believe that the government should be smaller. However, the entire point is that the way the modern Federal government operates, right or wrong, allows such a law to be constitutionally valid. That's it. Whether or not it agrees or disagrees with your point of view is one thing, but that's not what I'm trying to argue with you about.



posted on Apr, 29 2010 @ 02:29 PM
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Originally posted by nenothtu
Finally! Someone on the opposing team who can debate like an adult and make a cogent argument! I commend you, sir!


Originally posted by Ryanp5555

You are correct. Perhaps I should have made myself clear. In order for the government to regulate against the first amendment, and this is only the main test there are tests within this test to determine it, the government must have a necessary and compelling reason which outweighs the interests of the public. If the government can show that it does, than guess what? Statute is legal.


Since the government is alledged to BE the public, I'm not clear on how public interests can outweigh public interests.


Okay, the public interest and a citizen's interests are two different things. As a citizen you might have an interest in joining a militia, but the public as a whole has a greater interest in not underminning the military, not expending extra police powers, etc., etc. So, to sum it up it's not public interest vs. public interest, it's your interest vs. public interest.




If the US government allowed Militias combining that with the second amendment would give rights to arm these military's within the US.


That is correct. It does.


I agree, as of now, it most certainly does.




The government has a fundamental right to protect it's citizens, it's army's, and the rights given to it via the Article I of the US constitution. The citizen's rights that are being infringed here are very minimal, merely the right to form a militia.


Partially true. The government does have the rights you state, but they are no preemptive rights. In other words, the government cannot "crack down" on militias simply because they think said militias 'might' transform into a danger. In terms relating to individuals, I can't go out and shoot a man walking across my yard, even if he's carrying a firearm, simply because I think he 'might' break into my house. I can't preempt that individual based on a 'maybe'.


So, are you saying that the government cannot create laws before anyone actually breaks a law b/c someone may break it? If so, don't you think it's plausible that murder was illegal before the first murder happened in the US? Meaning, that murder being illegal at the formation of the country was a law before the first person killed. Because certainly, I think the government can do that, and ought to do that.

True the government cannot enforce a law ex post facto, but it can create a restraint based on a public interest that it perceives to be in possible existence. And challenging that law would require you to show that said laws are arbitrary in terms of what they are trying to regulate. Why? Because if the government can show a necessary and compelling reason to infringe your first amendment rights then they can regulate against it. At that point its up to you to show that this law does not actually fit this mold for whatever reason, be it hypothetical or whatever. With that said, one would think it would be pretty easy for the government to show that militias in the past have caused these problems. Perhaps I'm wrong though.



You still have the right to assembly. You can still fight against things you don't believe in within a group, however, you cannot form a militia. The difference is that you cannot form an army with citizens (aka a militia). As stated before, Article I also provides that Congress can make laws regarding the military.

Congress has already made such law. The Second Militia Act of 1792 requires that every able-bodied male between the ages of 18 and 45, with the exception of congressmen, coachmen, and ferrymen maintain suitable arms and equipment at their own expense, and meet for drills twice each year under the auspices of their local commanders. Those failing to do so are subject to courts-martial. That's federal law.

This bill in question is proposed state law, which federal law holds primacy over, unless I'm mistaken. Most states have their own militia regulations, which are valid unless they voilate the small body of federal laws on the matter.

Wait, so this is a state law as opposed to a federal law? I've been under the wrong impression then. If that is so, then yes, federal law trumps state law, and you'd want to fight the state and say listen, this power is clearly delegated to Congress and not you. No matter who it was passed by, my guess would be that the argument would come up (its the state's power vs. it's a federal power).

And I am not going to make any opinion on that federal law, a lot of times federal laws are still good but get forced out due to other laws. Since no one is following that law, I think it is conceivable that this happened, but I certainly cannot be sure, and to be honest, don't have time to do the research.




Not even close to what I meant. The government would have to add extra police force b/c these citizen army's would be roaming around. The government would have to spend more money to regulate them, to establish who gets to make the law. Hell, the mere existence of these groups could undermine the faith the citizens have in the government.


I'm not aware of any roving packs of militiamen. Can you direct me to evidence of such? In the absence of verification that such exists, I'd have to call that notion a speculative 'what-if'.

Military/militia regulation is generally promulgated by the command structure, and does not 'cost extra', unless by this you mean they will have to commission more militia officers and pay them? 'Who get to make the law' has already been established, long ago.

As far as militia existence undermining faith in government, I'd have to say that the government itself is doing a pretty good job of that already, without assistance, by their own actions.


You are correct that the police argument is weaker, and speculative. However, the undermining faith in government, if Congress determines that the militias are doing this; and my guess would be since more and more people are having their faith undermined they would be more likely to join a militia. But I'm not going to perform a study on this, and certainly that is speculative.

With that said, the argument that the government is already undermining faith in the government certainly is not going to be an argument. While I agree that they are, Congress certainly has the power (if they can regulate militias) to control/minimize the effects of this by eliminating a militia.





The State secures the welfare of its citizenry by rounding up people who are breaking the law all the time.


Ah, therein lies the rub. Militiamen are not breaking the law, they are supporting it. The essence of the question seems to be whether or not the government should be allowed, yet again, to criminalize currently lawful activity, thus making criminals out of those currently engaged in such activity.


Unless, of course, the law says you cannot be in a militia. By joining a militia you are breaking the law.

And of course the government has the right to create new laws making things that were once legal, illegal. You cannot be prosecuted for your prior actions, but your continued ignorance of the law will result in a punishment. Do you think Drinking and Driving was a law back when cars and roads were created? People, I'm sure, engaged in it. But that's a state law, let's think of a federal law. How about all the new laws created by the FAA after 9/11 (cont)



posted on Apr, 29 2010 @ 02:48 PM
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reply to post by nenothtu
 





You are masking the fact that these citizen ARMIES are not everyday citizens. Most citizens are not part of a militia.


Ah, but they ARE everyday citizens! Simply because the majority fears engaging in such activity in no way diminishes or enhances the citizen status of those who do. The MAJORITY of the US populace is urban, so what you have said is no different than saying 'rural Americans are not everyday citizens' in an attempt to criminalize rural living.


Just as every criminal is a citizen. But, when you commit a crime, if jail is the punishment, you go to jail. Period. It's like saying those people who commit a crime should pay the punishment for their crime. As I stated, the government clearly can, and has, created laws making past legal conduct illegal.



In the absence of evidence of guilt, an individual is generally held to be presumed innocent until proven guilty. Criminalizing militias, besides overturning established law, makes militiamen guilty of a crime by the associations they have chosen, not any illegal activity they have engaged in.


The illegal activity would be being a part of a militia. The question then is can the government regulate freedom of association? The answer is yes, if there is a necessary and compelling reason (as I stated earlier there are tiers to this analysis) but if the government can make some strong showings that militias have acted in violence, say a plot to kill cops, then they can probably get the law passed.

So, as long as the regulation is constitutional, then associating with a certain group would be illegal as well. Although the more I think about this the more strength I do see in the counter argument, but I still think the better argument rests with the government. It really would depend on what evidence they could show.




And to the other poster, no where in the Constitution does it secure the right to form a militia. Here is the Second Amendment verbatim:


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


The Second Amendment lays out that the right to bear Arms shall not be infringed. Not the right to form a militia. It only touches on the necessity of a militia, but in no way secures that right to its citizenry.


Militias are generally state entities, and there is really very little federal law on the subject. The federal government has commanded the formation of militias, and has reserved the right to federalize those formed in the event of an external threat, but not much else.

Your analysis of the second amendment is pretty close. As I'm sure you are aware, the SCOTUS has held in DC v. Heller that the first part of that amendment, touching upon 'the necessity of a militia' (your words, and they are important) is a preambular clause, setting forth one reason from many possibilities to justify the second part, which is the actual operative clause.

This means that "A well regulated militia being necessary to the security of a free State" implies a right already held, and universally recognized. Otherwise, it couldn't be used as a justification for the right being enumerated. If a non-right is used to justify a right, then when the non-right, the justification, falls, so does the enumerated right.


That certainly is a strong argument. Before I get into it, I'd like to talk about something I find very interesting, and perhaps the biggest case which should be decided in a month or so, McDonald v. Chicago. Basically, the first ten amendments were written to apply only as a restraint on the federal government. It wasn't until the 14th amendment was adopted that other amendments started to put a restraint on the State. The Second Amendment has never been held to be a restraint on the state. That is what McDonald v. Chicago is going to decide, and could reshape the landscape of Constitutional Law. Enough with that though...

If you give me time I will re-read Heller v. DC tonight, and reply back to you. If not, then that is my own fault, and you win on my lack of preparation. Ironically, I was actually going to read that case anyways tonight.


Originally posted by nenothtu

Originally posted by Ryanp5555


"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

This means that Congress can create any law that is necessary and proper regarding the calling forth of Militias, including, that there shall be no militias.



Not to step on anyone else's debate, but I just couldn't let this gem pass without comment.

"Calling forth" militias means activating them and putting them to service for cause, and has nothing at all to do with outlawing them. It provides for after-action disbanding, in which event the militias go back home, to their regular schedule of training and equipping.

So no, it's not any sort of provision 'that there shall be no militias'.


"Congress has the power to provide for the calling forth of Militias [...]"

In my mind doesn't that also mean Congress has the power to dispel Militias? If not wouldn't calling them forth also imply the inability to ever get them disbanded? Not to mention Congress has the power to provide the rules for Land and Naval forces.


Originally posted by nenothtu

Originally posted by Ryanp5555

What are you arguing here? That the necessary and proper clause doesn't exist? What do you suppose that it means when it says:


The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


Immediately after the enumerated powers of Congress? How do you justify this clause with your current expectations?



This clearly states that Congress can make laws to execute the powers enumerated above it. It doesn't say anything at all about negating them. That activity requires amendment.


It clearly states that Congress shall have the power to make ALL Laws which shall be necessary and proper etc. In my mind all includes both negative and positive laws.



[edit on 29-4-2010 by Ryanp5555]



posted on Apr, 29 2010 @ 04:27 PM
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Originally posted by Ryanp5555

Okay, the public interest and a citizen's interests are two different things. As a citizen you might have an interest in joining a militia, but the public as a whole has a greater interest in not underminning the military, not expending extra police powers, etc., etc. So, to sum it up it's not public interest vs. public interest, it's your interest vs. public interest.


My position here is that the Bill of Rights was adopted to guarantee individual rights (DC v. Heller again, in the case of the Second Amendment) and that the original body of the Constitution enumerated as well as limited rights of the state and federal governments, and so by extension the Public Interest. If that turns out to be the case, then what remains is to balance individual vs, public rights through that lens. Otherwise, militia members could conceivably be found to be in compliance with federal law, and simultaneously in violation of state law, an unenviable position.

Federal law mandates militia membership for a specific class of individuals in the public interest, and until that law is stricken, it trumps state rights to outlaw compliance with that federal law. Unless, of course, the federal statutes in question can be shown to violate the Constitution, most likely on a 10th Amendment basis. So far, that has not been the case, so the federal law still stands.



So, are you saying that the government cannot create laws before anyone actually breaks a law b/c someone may break it? If so, don't you think it's plausible that murder was illegal before the first murder happened in the US? Meaning, that murder being illegal at the formation of the country was a law before the first person killed. Because certainly, I think the government can do that, and ought to do that.


No, I'm saying that the government should nullify already existing laws before making new ones that will cause a violation conflict. Clearly, criminal activity perpetrated by a militia will be covered under criminal statutes, as well as being found in violation of the public interest, but mere membership and association will not be, under the law as it now stands. Since militias are sanctioned under current law (whereas 'gangs' are not - perhaps a matter of semantics in the minds of some), it will create conflict to both allow and deny their formation simultaneously.



True the government cannot enforce a law ex post facto, but it can create a restraint based on a public interest that it perceives to be in possible existence. And challenging that law would require you to show that said laws are arbitrary in terms of what they are trying to regulate. Why? Because if the government can show a necessary and compelling reason to infringe your first amendment rights then they can regulate against it. At that point its up to you to show that this law does not actually fit this mold for whatever reason, be it hypothetical or whatever. With that said, one would think it would be pretty easy for the government to show that militias in the past have caused these problems. Perhaps I'm wrong though.


Those restraints are already in place under criminal law barring criminal activity by anyone, 'militia' or not. 'Militia' problems in the past, involving criminal activity, have been dealt with under color of existing criminal law.

This might be a good place to define for the readers the meaning of 'under color of law'. 'Color of Law' is a justification used for taking an action under alleged existing law that may or may not actually be covered by that law, by a person or persons claiming legal authority in the matter. If challenged, it then falls to the courts to determine actual legality of the action.

My main point here is that criminal law already punishes criminal activity by anyone, militia or not, and an 'anti-militia' law merely creates a new class of criminals, based solely on association rather than activity.



Wait, so this is a state law as opposed to a federal law? I've been under the wrong impression then. If that is so, then yes, federal law trumps state law, and you'd want to fight the state and say listen, this power is clearly delegated to Congress and not you. No matter who it was passed by, my guess would be that the argument would come up (its the state's power vs. it's a federal power).


Yes, it's a proposed state law in Oklahoma, proposed by a state legislator in state government, and doesn't cover the nation at large.



You are correct that the police argument is weaker, and speculative. However, the undermining faith in government, if Congress determines that the militias are doing this; and my guess would be since more and more people are having their faith undermined they would be more likely to join a militia. But I'm not going to perform a study on this, and certainly that is speculative.


If a militia can be shown to be promoting sedition, then yes, they are already covered under existing criminal law. I submit that that would be on a case by case basis, rather than justification for eliminating them as a class, across the board.

The argument that more and more people are joining the militias because their faith in government is waning demonstrates a different source for that undermining of faith than the militias themselves, since they are the destination of those faithless folk, rather than the starting point. In other words, their flocking to militias is the result of a pre-existing lack of confidence, rather than the cause of it. eliminating the end result does nothing to address the root cause, and so will not prevent future occurrences. It will merely drive them underground.



And of course the government has the right to create new laws making things that were once legal, illegal. You cannot be prosecuted for your prior actions, but your continued ignorance of the law will result in a punishment. Do you think Drinking and Driving was a law back when cars and roads were created? People, I'm sure, engaged in it. But that's a state law, let's think of a federal law. How about all the new laws created by the FAA after 9/11 (cont)


True enough, but in the examples given, there are no previous laws in place that specifically allow drunk driving, much less mandate it.



posted on Apr, 29 2010 @ 05:22 PM
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Originally posted by Ryanp5555
reply to post by nenothtu
 





You are masking the fact that these citizen ARMIES are not everyday citizens. Most citizens are not part of a militia.


Ah, but they ARE everyday citizens! Simply because the majority fears engaging in such activity in no way diminishes or enhances the citizen status of those who do. The MAJORITY of the US populace is urban, so what you have said is no different than saying 'rural Americans are not everyday citizens' in an attempt to criminalize rural living.


Just as every criminal is a citizen. But, when you commit a crime, if jail is the punishment, you go to jail. Period. It's like saying those people who commit a crime should pay the punishment for their crime. As I stated, the government clearly can, and has, created laws making past legal conduct illegal.


Precisely. Criminal activity is already covered by existing criminal statute. Any criminal activity that 'militias' could conceivably engage in would be better served by prosecution under those laws, rather than creating a new criminal class by association.




The illegal activity would be being a part of a militia. The question then is can the government regulate freedom of association? The answer is yes, if there is a necessary and compelling reason (as I stated earlier there are tiers to this analysis) but if the government can make some strong showings that militias have acted in violence, say a plot to kill cops, then they can probably get the law passed.



Refresh my memory. Was it illegal to be a member of the Communist Party, USA, during the era of McCarthyism? In modern times, is it illegal just to be a member of so repulsive an organization as the KKK? This would certainly create a strange landscape if passed and allowed to stand - it would make federally sanctioned militias the only organization I'm aware of in America that it was illegal merely to belong to.



That certainly is a strong argument. Before I get into it, I'd like to talk about something I find very interesting, and perhaps the biggest case which should be decided in a month or so, McDonald v. Chicago. Basically, the first ten amendments were written to apply only as a restraint on the federal government. It wasn't until the 14th amendment was adopted that other amendments started to put a restraint on the State. The Second Amendment has never been held to be a restraint on the state. That is what McDonald v. Chicago is going to decide, and could reshape the landscape of Constitutional Law.


I know that localities have been allowed to regulate weapons to a point, as far back as the 1800's when certain sorts of cutlery were outlawed in certain localities and it stood. Armaments in general have not been regulated that I know of, but certain types and modes of carry have. DC v. Heller will probably figure into McDonald v. Chicago as precedent, and that decision is likely why this case has been brought to bear. you're right, it will be interesting.



If you give me time I will re-read Heller v. DC tonight, and reply back to you. If not, then that is my own fault, and you win on my lack of preparation. Ironically, I was actually going to read that case anyways tonight.


By all means, take the time to review the case. The discussion would be incomplete without that review. Matter of fact, if I had good sense I'd probably review it too. The entire case, including depositions and Friend of the court Briefs probably runs into the thousands of pages, so I'd recommend starting with the decision and working backwards if it piques your interest, in order to cut to the chase and fill in hollow spots as time avails.



"Congress has the power to provide for the calling forth of Militias [...]"

In my mind doesn't that also mean Congress has the power to dispel Militias? If not wouldn't calling them forth also imply the inability to ever get them disbanded? Not to mention Congress has the power to provide the rules for Land and Naval forces.


Interesting question. I would say that congress can call forth militias in the event of necessity, and stand down militias after-action, but not eliminate them in the face of other laws mandating their existence. Further, I would think they have not much say in the matter of ordering a stand down until they federalize that particular militia by 'calling it forth'. That's just off the cuff, I've not really considered that matter or studied on it.








The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


Immediately after the enumerated powers of Congress? How do you justify this clause with your current expectations?



This clearly states that Congress can make laws to execute the powers enumerated above it. It doesn't say anything at all about negating them. That activity requires amendment.


It clearly states that Congress shall have the power to make ALL Laws which shall be necessary and proper etc. In my mind all includes both negative and positive laws.



All laws 'for carrying Execution' of the enumerated powers. It is mute on the point of negating other guarantees of rights found in the Constitution. That would require an Amendment to remove the offensive material. Otherwise, and taking the First Amendment as an example, Congress could simply whip up a law barring free speech, or making Hinduism the supreme religion of the nation, and de facto nullify the First Amendment.

[edit on 2010/4/29 by nenothtu]



posted on Apr, 30 2010 @ 10:27 PM
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Trying to equate as this amendment to the crime bill does persons who join a militia to help our nation remain a constitutional republic under the constitution to criminal gangs that are recruiting in prison among other felons is outrageous. It is highly disrespectful to this contingent of American patriots who for the most part have no criminal record and have faithfully served in the armed forces of this nation.

This crime bill which was for the purpose of making criminal gangs already breaking the law to face stiffer penalties for recruiting other prisoners into their criminal organizations while in prison. Tacking on this amendment that equates membership in a militia to membership in a prison/street gang is a huge and deliberate race baiting insult.

This bill has no chance of passing the OK state senate with this amendment as worded. The opposition coming on this will blow the law makers out of their seats in congress at the very least.




[edit on 30-4-2010 by wayouttheredude]



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